Is it right for President Trump to declare a state of emergency over the border wall? | The Tylt
President Trump has wide latitude by Congress to declare states of emergency—with terrorism, national security, and public health often cited as a rationale. The president, however, has declared a state of emergency because the legislative branch is exerting its constitutionally provided powers against his expressed wishes. He's within his rights to declare an emergency and build a wall along the border. But others argue this is a dangerous misuse of presidential powers. What do you think?
Is it right for President Trump to declare a state of emergency over the border wall?
When a president declares a state of emergency, they are immediately provided 136 statutory powers. According to The Atlantic, these powers range from allowing "the secretary of transportation to requisition any privately owned vessel at sea" to "unilaterally suspend[ing] the law that bars government testing of biological and chemical agents on unwitting human subjects."
The president claims the situation at the border is so dangerous that the need for a wall is immediate. With emergency powers, The New York Times identified two ways which could provide President Trump the power to use the military to begin construction on a border wall.
One of the laws permits the secretary of the Army to halt Army civil works projects during a presidentially declared emergency and instead direct troops and other resources to help construct “authorized civil works, military construction and civil defense projects that are essential to the national defense.”
Another law permits the secretary of defense, in an emergency, to begin military construction projects “not otherwise authorized by law that are necessary to support such use of the armed forces,” using funds that Congress had appropriated for military construction purposes that have not yet been earmarked for specific projects.
Congress gave the president such broad powers in good faith that they would be used in the best interest of the country during times of crisis. While there is little evidence to support the president's claims of terrorists flowing in through the border, there are very few ways to challenge the legitimacy of a declared state of emergency.
The Los Angeles Times reports Democratic lawmakers have made it clear any attempt by the president to declare a state of emergency on the border would be met with swift legal action.
Senate Minority Whip Richard J. Durbin (D-Ill.) on Sunday also warned of a legal challenge if Trump uses a national emergency declaration to pay for a wall.
“I can just tell you, I don’t know what he’s basing this on, but he’s faced so many lawsuits when he ignores the law and ignores tradition and precedent and just goes forward without any concern,” Durbin said on CBS’ “Face the Nation.”
“He’ll face a challenge, I’m sure, if he oversteps what the law requires when it comes to his responsibility as commander in chief,” Durbin added.
Lengthy legal challenges on such a declaration would mean the president is merely delaying the government from actually dealing with the humanitarian crisis unfolding at the border.
There are also concerns the erroneous declaration of a state of emergency could have a dramatic destabilizing effect on the government, coalescing power around the president to the detriment of other branches. Andrea Pitzer, the author of "One Long Night: A Global History of Concentration Camps," writes in The Washington Post that a declaration of emergency at the border would differ dramatically from other such declarations in the past.
Two key differences make Trump’s plan particularly risky. The first is that no actual emergency exists — no equivalent to Pearl Harbor, 9/11 or even economic collapse. Instead, Trump threatens an emergency to punish another branch of the government for constitutionally exercising its authority.
The second difference relates more directly to the president himself. U.S. courts have often left space for presidents to respond quickly to events threatening the country’s stability, with the assumption that the executive branch is considering all the available intelligence and will have the most informed perspective, a premise that simply does not apply to Trump.
Totalitarianism rises out of a process, not a single event. Declaring a state of exception in response to a political impasse would be a big step toward degrading an already vulnerable system. A fake emergency could trigger a real catastrophe — one that a split Congress would be unlikely to resolve and that a Supreme Court sympathetic to an imperial presidency might even worsen. We have more than a century of precedents at home and abroad to demonstrate all the ways things could go wrong.
Even those who support the construction of a border wall have not fallen in line behind the president's claims of an emergency. David French, a senior writer at the conservative National Review, writes:
We should be vigilant about controlling access to our country. I believe that more border barriers are an important aspect of border security. But words mean things, and the idea that a border wall is so “essential to the national defense” that it “may require the use of the Armed Forces” to deal with a national emergency is to stretch the plain meaning of the statute past the breaking point.
Critically, we cannot forget that in a time of peace, border security is a civilian function, and the penalties for unlawful crossing are matters for civilian law enforcement. Illegal entry is only a misdemeanor under federal law, and there are profound legal limits on the use of the armed forces in a law-enforcement capacity.
The law, however, does allow the president to both declare an emergency and use the provided powers to their fullest extent. Many arguments against his ability to move troops to the border to begin construction of the wall hinge on the principle of "posse comitatus." Elizabeth Goitein, co-director of the Liberty and National Security Program at the Brennan Center for Justice, writes in The Atlantic:
The principle that the military should not act as a domestic police force, known as “posse comitatus,” has deep roots in the nation’s history, and it is often mistaken for a constitutional rule. The Constitution, however, does not prohibit military participation in police activity. Nor does the Posse Comitatus Act of 1878 outlaw such participation; it merely states that any authority to use the military for law-enforcement purposes must derive from the Constitution or from a statute.
The Insurrection Act of 1807 provides the necessary authority. As amended over the years, it allows the president to deploy troops upon the request of a state’s governor or legislature to help put down an insurrection within that state. It also allows the president to deploy troops unilaterally, either because he determines that rebellious activity has made it “impracticable” to enforce federal law through regular means, or because he deems it necessary to suppress “insurrection, domestic violence, unlawful combination, or conspiracy” (terms not defined in the statute) that hinders the rights of a class of people or “impedes the course of justice.”